Slappy v. Detroit, City of et al
ORDER Denying 62 Motion in Limine; Denying 63 Motion in Limine; Granting 64 Motion in Limine; Denying Without Prejudice 65 Motion in Limine; Granting Without Prejudice 66 Motion in Limine; Granting 67 Motion in Limine; Granting in Part and Denying in Part 68 Motion in Limine; Granting 69 Motion in Limine; Denying 70 Motion in Limine; Granting in Part and Denying in Part 71 Motion in Limine; Granting in Part and Denying in Part 72 Motion in Limine; Granting 73 Motion in Limine; Granting 74 Motion in Limine; Denying Without Prejudice 75 Motion in Limine; Denying 76 Motion in Limine; Granting 77 Motion in Limine; Denying 78 Motion in Limine; and Denying 79 Motion in Limine.. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 19-10171
Honorable Victoria A. Roberts
CITY OF DETROIT et al.,
ORDER REGARDING PLAINTIFF’S AND DEFENDANTS’ MOTIONS IN
LIMINE [ECF No. 62-79]
Edward Slappy (“Slappy”) filed a 42 U.S.C. § 1983 claim against the
City of Detroit, Eric Carthan, Eric Bromley, and Randolph Williams
(collectively, “Defendants”). The matter is before the Court on Plaintiff’s
motions in limine. [ECF Nos. 62-65] and Defendants’ motions in limine, [ECF
Nos. 66-79]. On July 8, 2021, the Court held a hearing on the motions.
Brandon McNeal and David Robinson appeared for Slappy; Alfred Ashu and
Krystal Crittendon appeared for Defendants.
On January 12, 2017, Slappy and his supervisor went to Freer Bar after
work. Slappy realized he was drinking on an empty stomach and decided
to order food from Telway Hamburgers (“Telway”) on Michigan Avenue.
Once he arrived at Telway, Slappy ordered and paid for his food.
Defendants say that Telway employees called the police because
Slappy became disruptive and refused to leave the restaurant. Slappy
says he simply asked, “where his food was,” and Telway staff never asked
him to leave the restaurant.
Police officers Carthan and Bromley arrived at Telway at approximately
3:15 a.m. They asked Slappy to leave the establishment. Slappy says he
complied with the officers’ request and went outside. While outside,
Slappy admits that he exhibited “strange” behavior but says he never
disturbed anyone; Defendants say Slappy was intoxicated and
belligerent. Carthan and Bromley eventually told Slappy he was free to go
and both officers left the scene.
Slappy returned to Telway to get his food. Officers Bromley and
Carthan returned as well. They handcuffed Slappy, searched him, put him
into the backseat of their squad car and began to transport him.
Defendants say they were providing Slappy with a “courtesy conveyance”
to a relative’s house. However, Defendants transported Slappy from
Telway, which is 3.9 miles away from his residence, to the Michigan and
Trumbull area — roughly 5.7 miles away from his residence.
Once Slappy got out of the car, Carthan and Bromley say they gave
him a citation for disorderly conduct, gave him a brown paper bag
containing the food he ordered from Telway, and left the scene. Slappy
claims before the officers left, they hit him — rendering him unconscious.
Subsequently, Slappy walked to Motor City Casino where he told
Officer Randolph Williams that two Detroit police officers assaulted him.
Williams and his supervisor transported Slappy to Detroit Receiving
Hospital. There, Defendants say Slappy continued to be combative.
Williams issued a second ticket for disorderly conduct. The first disorderly
conduct charge was dismissed and a jury found Slappy not guilty on the
Slappy sued Defendants under 42 U.S.C. § 1983 claiming a multitude
of constitutional violations. Slappy voluntarily dismissed a number of
claims, and the Court dismissed several claims as a result of Defendants’
summary judgment motion. [ECF. No 50]. The only surviving claims are
all against Carthan, Bromley, and Williams: (1) Fourth Amendment
unlawful search and seizure (Count I); (2) First Amendment retaliation
(Count I); and (3) false arrest and false imprisonment (Count IV).
A district court may rule on evidentiary motions in limine “to narrow the
issues remaining for trial and to minimize disruptions at trial.” United States
v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). In doing so, the Court should
exclude evidence only when that evidence is determined to be clearly
inadmissible on all potential grounds. Ind. Ins. Co. v. General Elec. Co., 326
F. Supp.2d 844, 846 (N.D. Ohio 2004). The trial court retains the discretion
to grant or deny a motion in limine. Branham v. Thomas Cooley Law Sch.,
689 F.3d 558, 560 (6th Cir. 2012).
Only relevant evidence is permitted under Fed. R. Evid. 401 and 402.
Irrelevant evidence is impermissible. Evidence is considered “relevant” if it
“has any tendency to make a fact more or less probable than it would be
without the evidence” and “the fact is of consequence in determining the
action.” Fed. R. Evid. 401. Rule 403 requires the Court to exclude even
relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence. Fed. R. Evid. 403.
A. Plaintiff’s Motions in Limine
1. To preclude dismissed and settled claims [ECF No. 62]
Slappy moves to preclude Defendants’ reference to dismissed
defendants and dismissed and/or settled claims. The Court dismissed
excessive force and assault and battery claims on summary judgment. [ECF
No. 50]. Slappy voluntarily dismissed: municipal liability claims against the
City of Detroit; all claims against Terry Bonds; his gross negligence claim;
his intentional infliction of emotional distress claim; his excessive force claim
and assault and battery claims against Carthan; and his Fourth Amendment
unlawful search and seizure claim with respect to the seizure of his vehicle.
Id. At the hearing, Defendants conceded that settled claims may not come in
under Fed. R. Evid. 408. Defendants stated they did not intend to refer to
dismissed defendants or claims but argued that the alleged use of force and
Slappy’s ability to recall events are directly at issue. Thus, to the extent that
there are facts related to both a dismissed claim and a pending claim,
Defendants argue that those facts should be admissible.
Case law does not support the admission of evidence related to
dismissed parties and claims; it lacks probative value. See Young v. Version
Allsteel Press Co., 539 F. Supp. 193 (E.D. Pa., 1982); Trout v. Milton S.
Hershey Medical Center, 572 F. Supp. 591 (M.D. Pa. 2008); Bryce v. Trace,
Inc., No. CIV-06-775-D, 2008 WL 906142 at *3 (W.D. Okla. March 31, 2008).
The Court GRANTS Slappy’s motion in limine to preclude reference to
dismissed and settled claims.
2. To preclude reference to Plaintiff’s recorded force
investigation interview and citizen complaint [ECF No. 63]
Slappy moves for an order precluding Defendants’ reference to his
citizen complaint against Bromley and Carthan and the Detroit Police
Department’s Internal Affairs Division force investigation interview regarding
his assault and battery and excessive force allegations against Bromley and
Slappy argues that the evidence is irrelevant because it focuses solely
on the excessive force and assault and battery claims against Bromley and
Carthan that have already been dismissed.
Defendants argue that the video also discusses Slappy’s inability to
recall events the night of the incident, the impoundment of his car, and an
invitation for Slappy to voice any other grievances that he had. Slappy did
not voice any other grievances during the recorded interview. Defendants
say this evidence is directly relevant to Slappy’s credibility and can be used
for impeachment pursuant to Fed. R. Evid. 608. They also argue the
evidence is admissible under Fed. R. Evid. 613 as a prior inconsistent
The Court reviewed the interview and finds that it did not only discuss
Slappy’s excessive force and assault and battery claims. The Court
disagrees with the Defendants that the evidence may come in as a prior
inconsistent statement under Fed. R. Evid. 613(b); it is not a prior
inconsistent statement because the interview and complaint are opposing
party statements under Fed. R Evid. 801(d)(2).
The evidence can potentially come in as a party admission pursuant to
Fed. R. Evid. 801(d)(2) to impeach Slappy’s credibility.
The Court DENIES Slappy’s motion in limine to preclude reference to
his force investigation interview and citizen complaint. The Court presumes,
however, that Defendants will seek to admit only relevant portions of the
recorded interview and citizen complaint.
3. To preclude prejudicial and irrelevant questions and
answers [ECF No. 64]
This motion seeks to preclude reference to Slappy’s prior arrests,
convictions, and alcohol rehabilitation treatment. He says such references
would be irrelevant and prejudicial. Slappy argues that the evidence is
prohibited extrinsic evidence of specific instances of conduct under Fed. R.
Evid. 608(b) and not a crime subject to impeachment under Fed. R. Evid.
609. He says that none of his convictions is admissible under Fed. R. Evid.
609(a)(2) because they do not relate to dishonesty.
Although Defendants stated that they do not intend to discuss Slappy’s
prior arrests, convictions, and rehabilitation treatment they asked the Court
to allow them to reserve the right to discuss this evidence if Slappy opens
the door, especially as it relates to his non-economic damages. They argue
that the evidence is relevant under Fed. R. Evid. 404(b)(2) for “other
purposes” than impeachment, such as knowledge.
So long as Slappy’s prior convictions do not involve a crime with
elements that involve dishonesty or false statements pursuant to Fed. R.
Evid. 609(a)(2) they may not come in as evidence.
There is no rule that allows evidence of prior arrests or rehabilitation
treatment. There is no reason to admit evidence of Slappy’s prior arrests or
rehabilitation except to show propensity; it is inadmissible under Fed. R.
The Court GRANTS Slappy’s motion to preclude prejudicial and
irrelevant questions and answers.
4. To preclude testimony from Raymond Diaz/Sara Schulz
and to preclude admission of their “Police Photographs”
[ECF No. 65]
Plaintiff’s final motion asks the Court to preclude Raymond Diaz and
Sara Schulz, evidence technicians, from testifying and presenting evidence
of photographs they took of Slappy as part of their use of force investigation.
Slappy says that because his disorderly conduct, excessive force, and
assault and battery charges have been dismissed, allowing testimony or
evidence relating to these dismissed claims has a substantial likelihood of
misleading the jury, confusing the issues, and wasting time.
Defendants argue that Slappy’s motion is premature; Schulz and
Diaz’s testimony may be relevant depending on Slappy’s testimony at trial.
With regard to the photographs, Slappy argues the photos taken immediately
after his arrest are relevant to his damage calculation for emotional and
psychological injuries related to his arrests.
Slappy alleged a number of injuries resulting from his arrest including,
but not limited to fear, anxiety, degradation, humiliation, shame, and
emotional distress. Although Schulz and Diaz took their photos after the
incident at Telway and after Slappy arrived at Detroit Receiving Hospital,
photographs of his physical condition hours after the incident are relevant;
they could help the jury determine the extent of Plaintiff’s disputed damages.
Their probative value also outweighs their prejudicial value. See Dixon
v. Int'l Harvestor Co., 754 F.2d 573, 586 (5th Cir. 1985) (holding that
photographs of a plaintiff's wounds were “relevant to demonstrate the nature
of [plaintiff's] injuries.”)
Assuming their proper authentication under Fed. R. Evid. 901, the
Court sees no issue in allowing admission of the photographs and Diaz’s and
Schulz’s testimony to that end. However, any testimony that does not pertain
to the photographs and is not rationally based on their perceptions as lay
persons will not be admitted. See Fed. R. Evid. 701.
Slappy’s motion is DENIED WITHOUT PREJUDICE. He may renew
his motion depending on the evidence presented at trial.
B. Defendants’ Motions in Limine
5. To exclude references to officer representation and
indemnification [ECF No. 66]
Defendants move to preclude Slappy from stating in front of the jury
that Defendants are indemnified and represented by the City of Detroit.
Defendants argue indemnity is akin to insurance; Fed. R. Evid. 411
precludes reference to it, and it is irrelevant to the officers' individual liability
or the city's respondeat superior liability.
Slappy says he does not plan to use this evidence; however, he argues
that he can foresee a potential scenario creating the need to proffer evidence
regarding indemnification if the Defendants open the door by suggesting that
they will be personally responsible to pay any damages.
Generally, government indemnification of employee § 1983 liability is
treated in the same manner as private liability insurance — which is not
admissible under Fed. R. Evid.411 to prove whether the person acted
negligently or wrongfully — and this information is excluded from the jury.
Lopez v. City of Cleveland, No. 1:13 CV 1930, 2016 WL 6587463, at *3 (N.D.
Ohio Apr. 18, 2016) (citing, Johnson v. Howard, 24 F. Appx. 480 (6th Cir.
However, the Court may admit this evidence for another purpose, such
as to prove a witness’s bias or prejudice, or to prove agency, ownership, or
control. See Fed. R. Evid. 411. Admissibility of evidence of liability insurance
for a purpose other than fault is still subject to the requirements of F. R. Evid.
403 including consideration of the potential effectiveness of a limiting
instruction, pursuant to Fed. R. Evid. Rule 105. See § 411:1 Liability
insurance, 3 Handbook of Fed. Evid. § 411:1 (9th ed.). It is also appropriate
for the court to question the jurors as to whether they can decide the matter
without letting the fact of insurance or indemnification affect their judgment
Defendants’ Motion is GRANTED WITHOUT PREJUDICE.
6. To exclude reference to newspaper articles and other
media reports or TV broadcasts regarding unrelated
incidents involving allegations of police misconduct,
protests, civil unrest, “Black Lives Matter,” “All Lives
Matter,” “Blue Lives Matter,” George Floyd, or police
perceptions generally [ECF No. 67]
Defendants move to preclude Slappy from making reference to Black,
Blue, or All lives matter, or any general refences to police misconduct which
has received national attention. The use of this evidence, they argue, would
be irrelevant and more prejudicial than probative because of the
inflammatory nature of the information.
Slappy says he has no intention of presenting evidence on these
topics. Nevertheless, he says he is entitled to ask questions of Defendants
concerning their knowledge of constitutional rights violations that resulted in
civil lawsuits, since it is directly relevant to any punitive damages assessment
and Defendants’ state of mind.
“Unrelated allegations and incidents of police misconduct possess
minimal—if any—probative value while carrying a great risk of prejudice to
police officers.” Martin v. City of Chicago, No. 15-CV-04576, 2017 WL
2908770, at *6 (N.D. Ill. July 7, 2017) (barring plaintiff from mentioning “police
misconduct unrelated to the present case, including highly publicized
incidents such as the deaths of Michael Brown and Laquan McDonald.”).
Many courts exclude evidence and argument referring to unrelated officer
involved shootings. See, e.g. Ochana v. Flores, 199 F. Supp. 2d 817, 831
(N.D. Ill. 2002), aff'd, 347 F.3d 266 (7th Cir. 2003) (“The court finds that any
reference to recent publicized events concerning allegations of police
misconduct would be unduly prejudicial, as it would distract the jury's
attention from the conduct at issue”).
Here, any evidence or argument concerning unrelated officer-involved
shootings, or the Black/Blue Lives Matter movement, All Lives Matter
Movement, or similar related issues, would be irrelevant, unfairly prejudicial,
and improper character evidence. See Kellom v. Quinn, No. 17-11084, 2019
WL 4187353, at *12 (E.D. Mich. Sept. 4, 2019) (granting motion in limine
precluding references to unrelated alleged law enforcement misconduct).
There is no claim regarding nationwide police practices or training.
Therefore, there is no factual or legal connection between nationally reported
incidents and this case. The mention of unrelated officer-involved shootings
and Black/Blue/All Lives Matter may trigger strong public reactions which
could unfairly prejudice Bromley, Carthan and Williams.
Defendants’ Motion is GRANTED.
7. To exclude reference to the consent decree entered into
between the City of Detroit and the Department of Justice,
quarterly monitor reports and Detroit Police policies or
training [ECF No. 68]
In 2003, the City of Detroit entered into a consent decree with the U.S.
Department of Justice concerning police department practices, training and
policies. Defendants now ask the Court to prevent Slappy from introducing
evidence of this consent decree as well as evidence of DPD training and
policies. They say this evidence should be excluded because the City of
Detroit is no longer a party, the evidence is not relevant, and would only
confuse the issues and mislead the jury.
Slappy argues that district courts in this circuit do not categorically
exclude this evidence.
As Defendants correctly point out, the City of Detroit is no longer a
party. The existence or nonexistence of the consent decree does not inform
any of the key issues remaining. Even if the consent decree has relevance
as evidentiary background, its probative value is substantially outweighed by
the risks of unfair prejudice and confusion. Ross v. Am. Red Cross, No. 2:09CV-00905-GLF, 2012 WL 2004810, at *4 (S.D. Ohio June 5, 2012), aff'd, 567
F. App'x 296 (6th Cir. 2014). The Court precludes admission of the City of
Detroit’s consent decree.
With regard to police policies and procedures Plaintiff argues evidence
relating to them should be admissible. In support, Slappy offers two cases:
Luna v. Bell, No. 3:11-CV-00093, 2013 WL 12316066 (M.D. Tenn. Aug. 1,
2013) and Alvarado v. Oakland Cnty., 809 F. Supp. 2d 680, 692 (E.D. Mich.
Both Luna and Alvarado stand for the proposition that in § 1983 police
misconduct cases expert testimony regarding police policies and procedures
“are appropriate subjects of expert testimony, provided that the experts do
not express legal conclusions based on their interpretation of the application
of those policies in a particular case.” Alvarado at 692; Champion v. Outlook
Nashville, Inc., 380 F.3d 893, 908-09 (6th Cir. 2004). Both cases allowed
expert witnesses to testify to police policies and procedures. This Court will
allow such testimony as well.
Defendants’ motion in limine is GRANTED with respect to the consent
decree and DENIED with respect to DPD policies and procedures.
8. To exclude reference to past or subsequent officer
misconduct, citizen complaints, disciplinary histories,
legislative or judicial hearing transcripts or recordings
and findings and judgements [ECF No. 69]
The Court GRANTS Defendants’ motion for the same reasons the
Court granted ECF No. 67.
9. To prevent Plaintiff from requesting an award of punitive
damages [ECF No. 70]
Defendants move to prevent Slappy from requesting punitive
damages. They argue Slappy failed to prove that Defendants’ conduct was
either motivated by evil motive or intent, or that it involved reckless or callous
indifference to Slappy’s federally protected rights.
Punitive damages are available in a proper § 1983 action. Smith v.
Wade, 461 U.S. 30, 35 (1983) (quotations omitted). A jury may be permitted
to assess punitive damages in an action under § 1983 when the defendant's
conduct is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others. Id.
Count I of Slappy’s complaint — First Amendment retaliation claim
against Carthan, Bromley, and Williams — survived summary judgement.
This count alone justifies the consideration of punitive damages. In King v.
Zamiara the Sixth Circuit held:
“[w]hen a defendant retaliates against a plaintiff's
exercise of his First Amendment rights, the defendant
necessarily acts with the purpose of infringing upon the
plaintiff's federally protected rights. Thus, a defendant
who has been found liable for First Amendment
retaliation has engaged in conduct that warrants
consideration of an award of punitive damages.”
788 F.3d 207, 216 (6th Cir. 2015).
That ultimate question is yet to be determined by a jury. Precluding
Slappy’s punitive damage claims, while the First Amendment retaliation
claim is still viable, is premature.
Defendants’ motion to preclude plaintiff from presenting evidence to
support his punitive damages claim is DENIED.
To preclude Plaintiff from making “Golden Rule,”
“Community Consciousness” or “Send a Message”
arguments [ECF No. 71]
Defendants seek to preclude Slappy from making “Golden Rule,”
“Community Consciousness” or “Send a Message” arguments. They say
these arguments are an improper appeal to passions and sympathies
excluded by courts as prejudicial because they ask jurors to decide cases
upon emotion and not objective evaluation.
Slappy concedes that “Golden Rule” arguments are improper and says
he does not intend to make them. However, he does intend to use
“community consciousness,” or “send a message” arguments because a jury
is the conscience of the community.
“Golden Rule” arguments are universally recognized as improper.
United States v. Hall, 979 F.3d 1107, 1119 (6th Cir. 2020). And, asking jurors
to place themselves in the victim's shoes, violates the ban on Golden Rule
arguments. Id. at 1119. Closing arguments that encourage juror identification
with crime victims are also improper. Johnson v. Bell, 525 F.3d 466, 484 (6th
Cir. 2008) (finding, “It could have been you. It could have been your children.
It could have been any one of us,” remarks to be improper closing argument).
“Golden Rule” arguments tend to encourage the jury to make decisions
based on personal interest and bias rather than on the evidence. Hall, at
1119. The Court will not allow Slappy to employ “Golden Rule” arguments.
With respect to “send a message” arguments, the Sixth Circuit
addressed similar circumstances in Strickland v. Owens Corning, 142 F.3d
353, 358 (6th Cir.1998). There, the plaintiff referred to the jury as “the voice
of the community” and asked them to “tell” the defendants and “the world
where you stand” and “your voice will be heard.” Id. The Strickland court
concluded that such arguments “can have no appeal other than to prejudice”
and amount to an “‘improper distraction from the jury's sworn duty to reach
a fair, honest and just verdict.” Id.
Finally, a prosecutor is permitted to make an appeal to the jury to act
as the community conscious if it is not calculated to incite the passions and
prejudices of the jurors. U.S. v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991).
Defendants’ motion is GRANTED with respect to “Golden Rule” and
“Send a Message” arguments and DENIED with respect to “Community
To exclude argument regarding the value
importance of constitutional rights [ECF No. 72]
Defendants argue that Slappy should be precluded from asserting an
amount of damages based on the value or importance of the constitutional
rights at stake. Any such evidence, they say, is irrelevant and the probative
value is substantially outweighed by the risk of unfair prejudice because it
asks the jury to make a determination of damages outside of those that may
Slappy says he will not ask the jury to place a numerical value on the
constitutional rights at issue. However, he intends in closing argument to
stress the general importance of the constitutional rights at stake.
Damages based on the abstract ‘value’ or ‘importance’ of constitutional
rights are not a permissible element of compensatory damages.” King v.
Zamiara, 788 F.3d 207, 213 (6th Cir. 2015) (citing Memphis Community
School District v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249
(1986). However, mention of constitutional rights may be relevant both in
determining liability for constitutional violations and to a punitive damage
assessment. See King, at 213 (“reckless or callous disregard for the plaintiff's
rights, as well as intentional violations of federal law, should be sufficient to
trigger a jury's consideration of the appropriateness of punitive damages”).
Additionally, courts afford counsel “great latitude in making opening and
closing arguments to the jury.” Niles v. Owensboro Med. Health Sys., Inc.,
No. 4:09-CV-00061-JHM, 2011 WL 3205369, at *5 (W.D. Ky. July 27, 2011).
The Court GRANTS IN PART and DENIES IN PART Defendants’
Motion. Slappy may not ask the jury to assign a numerical value to the
importance of abstract constitutional rights in any compensatory damages
calculation, but Slappy is not precluded from asserting the importance of the
jury’s task to determine liability on constitutional questions.
To exclude reference to the code of silence [ECF No.
Defendants’ ask the Court to exclude any reference to the “code of
silence” or “blue wall.” They say mention of either term is unduly prejudicial
and would constitute impermissible propensity evidence under Fed. R. Evid.
404. The Court agrees, in part.
Generalized allegations of a “code of silence” related to police
personnel not involved in this case are not relevant and are akin to
impermissible propensity evidence under Fed. R. Evid. 404. Smith v. Garcia,
2018 2018 WL 461230 (N.D. Ill. 2018); see also Patterson v. Cty. of Wayne,
259 F.R.D. 286, 291 (E.D. Mich. 2009) (granting motion in limine precluding
reference to a police “code of silence”). Slappy will not be permitted to use
the term “code of silence” or “blue wall.”
But, district courts have permitted plaintiffs to develop the theme that
a code of silence existed among the particular officers involved in the events
underlying the complaint. See Hillard v. City of Chicago, 2010 WL 1664941,
at *3 (N.D. Ill. Apr. 23, 2010). A witness' or party's common membership in
an organization, even without proof that the witness or party has personally
adopted its tenets, is certainly probative of bias. United States v. Abel, 469
U.S. 45, 45–46 (1984).
To the extent Slappy focuses on officers Carthan, Williams and
Bromley, he may explore the possibility that they are biased because of their
loyalty to one another. Ford v. Bell, 2012 WL 1416456, at *4 (N.D. Ill. Apr.
24, 2012) (precluding "code of silence" references generally but allowing the
plaintiffs to introduce evidence regarding bias with respect to the defendants
in that case).
Defendants’ motion in limine to exclude reference to the “code of
silence” is GRANTED.
To exclude evidence, argument, or testimony implying
malice regarding the absence of body-cam video at the
hospital [ECF No. 74]
DPD policy generally prohibits the use of body worn cameras in
hospital and emergency rooms. Defendants argue that Slappy’s counsel
may attempt to offer evidence or elicit testimony concerning the absence of
William’s body-cam video at the hospital to show that there was a “cover-up”
surrounding the details of Slappy’s arrest. Defendants move to preclude
argument by Slappy that Williams’ failure to wear a body-cam in the hospital
was in malice.
Slappy concedes there is no evidence that Williams wore a body
camera on the day of the incident. He does not plan to suggest or imply any
malice by the absence of such evidence.
The Court GRANTS Defendants’ motion.
To exclude evidence or testimony regarding any
alleged violation of DPD police manual provisions
[ECF No. 75]
Defendants move for an order excluding evidence or testimony
regarding any alleged violation of DPD manual provisions related to Slappy’s
detention. Defendants argue that a failure to comply with an administrative
rule or policy does not itself rise to the level of a constitutional violation.
Laney v. Farley, 501 F.3d 577. 581 n.2 (6th Cir. 2007); Brody v. City of
Mason, 250 F.3d 432, 437 (6th Cir. 2001); Smith v. Freland, 954 F.2d 343,
347-48 (6th Cir. 1992). They argue that presenting this evidence would be
irrelevant, more prejudicial than probative, misleading to the jury, and
confusing on the issues.
Slappy responds that each Defendants’ state of mind is directly at
issue and evidence of policy violations is relevant to establishing their state
of mind. Slappy intends to discuss policies that demonstrate Defendants’ had
notice and knowledge of proper procedures regarding: arrest; transporting
detainees/arrestees. Despite their notice and knowledge, Slappy argues that
Defendants violated DPD policies. He says Defendants’ failure to follow
policies demonstrates deliberate indifference and shows willful and wanton
misconduct, which may establish punitive damages.
Defendants’ alleged failure to follow DPD police manual provisions
may establish deliberate indifference. Moreover, case law does not
categorically exclude evidence of the violation of administrative rule or policy.
Luna, 2013 WL 12316066 at *6, n.3; Alvarado v. Oakland County, 809 at 680
(E.D. Mich. 2011). Although violation of a rule or policy does not determine
constitutional law, it may be relevant to whether a defendant acted within
constitutional bounds. Luna, 2013 WL 12316066 at *6, n.3.
The Court DENIES WITHOUT PREJUDICE Defendants’ motion.
To exclude reference to opposing counsel’s former
career in law enforcement, government, or personal
Experience with Police [ECF No. 76]
Defendants seek to preclude Plaintiff’s attorneys from discussing their
former careers in law enforcement, government, or their personal
experiences with police because it would improperly infer to the jury that
counsel possesses specialized knowledge, and would amount to an
invitation to ask the jury to decide the case based on emotional reactions
rather than objective evidence in violation of Fed. R. Evid. 403. Mr. McNeal
is a former city attorney; Mr. Robinson is a former DPD officer.
Slappy points out that Defendants provide no case law in support of
their position that reference to former law enforcement careers, government
careers, or personal experiences with police are improper topics. He asks
the Court to deny the motion.
Courts generally afford great latitude in opening statements and
closing arguments. Niles v. Owensboro Med. Health Sys., Inc., 2011 WL
3205369 at *5 (W.D. Ky., July 27, 2011).
The Court DENIES Defendants’ motion. The Court will instruct the jury
that the “statements and arguments made by the lawyers are not
evidence…” and that “what [the lawyers] have said in their opening
statement, closing arguments, and at other times is intended to help [them]
to understand the evidence, but is not evidence.” See Devitt and Blackmar §
130:30. But, the Court cautions Mr. McNeal and Mr. Robinson to keep their
references to a minimum due to the risk of presenting themselves to the jury
as experts with specialized knowledge.
To exclude evidence or testimony regarding any judge
or jurors’ opinion or comments concerning the truth or
falsity of plaintiff’s claim [ECF No. 77]
Slappy was a party in multiple criminal trials related to the incidents
underlying his claims in this case. Defendants move to exclude Slappy from
introducing testimony, evidence, opinions, or comments from the judges and
jurors involved in those criminal cases as a violation of Fed. R. Evid. 403.
Slappy does not object.
The Court GRANTS Defendants’ motion.
To exclude evidence or testimony allocating fault to
Officer Eric Bromley [ECF No. 78]
Defendants asks the Court to exclude evidence or testimony allocating
fault to Bromley because it would not pass Fed. R. Evid. 403. Defendants
argue that Bromley was not the arresting officer.
Slappy argues that Defendants’ motion is merely a rephrased motion
for summary judgment and the time for filing such dispositive motions has
On summary judgment, the Court considered this issue. [ECF No. 50].
It held that questions of fact remain as to whether Bromley was the arresting
The Court agrees with Slappy and DENIES Defendants’ motion.
To preclude Plaintiff from seeking damages as to
Defendants Eric Bromley and Eric Carthan beyond
the time of his Second Arrest [ECF No. 79]
Defendants ask the Court to preclude Slappy from providing testimony
or evidence allocating damages to Carthan and Bromley beyond the time of
Slappy’s second arrest. Defendants contend Slappy’s damages, if any, only
flow from the second arrest because he was released from custody by
Carthan and Bromley.
Slappy says the emotional and psychological damages he sustained
are not separable from one arrest to the other. The Court agrees.
Slappy’s emotional, physical, or psychological injuries could have been
caused by one of or all the officers he interacted with on January 12, 2017.
To what extent each officers’ actions caused his injuries is a routine question
the jury will be asked to answer. M Civ JI 15.03 is the appropriate jury
instruction to give. The notes portion of this jury instruction explains, “[i]t is
prejudicially erroneous for jury instructions on proximate cause to refer to
“the proximate cause” instead of “a proximate cause” in cases in which it is
an issue whether there was more than one proximate cause.” Kirby v Larson,
400 Mich 585, 600–607; 256 NW2d 400, 408–411 (1977).
Defendants’ motion is DENIED.
With respect to the motions in limine discussed above, these are the
1. To preclude dismissed and settled claims [ECF No. 62]:
2. To preclude reference to Plaintiff’s recorded force investigation
and citizen complaint [ECF No. 63]: DENIED.
3. To preclude prejudicial and irrelevant questions and answers
[ECF No. 64]: GRANTED.
4. To preclude testimony from Raymond Diaz/Sara Schulz and to
preclude admission of their “Police Photographs” [ECF No. 65]:
DENIED WITHOUT PREJUDICE.
5. To exclude references to officer representation and
indemnification [ECF No. 66]: GRANTED WITHOUT
6. To exclude reference to newspaper articles and other media
reports or TV broadcasts regarding unrelated incidents involving
allegations of police misconduct , protests, civil unrest, “Black
Lives Matter,” “All Lives Matter,” “Blue Lives Matter,” George
Floyd, or police perceptions generally [ECF No. 67]: GRANTED.
7. To exclude reference to the consent decree entered into between
the City of Detroit and the Department of Justice, quarterly
monitor reports and Detroit Police policies or training [ECF No.
68]: GRANTED with respect to the consent decree; DENIED with
respect to Detroit Police Department policies and procedures.
8. To exclude reference to past or subsequent officer misconduct,
investigations, and administrative, legislative or judicial hearing
transcripts, or recordings and findings and judgements [ECF No.
9. To prevent Plaintiff from requesting an award of punitive
damages [ECF No. 70]: DENIED.
10. To preclude Plaintiff from making “Golden Rule,” “Community
Consciousness,” or “Send a Message” Arguments [ECF No. 71]:
GRANTED with respect to “Golden Rule” and “Send a Message”
arguments; DENIED with respect to “Community Consciousness
11. To exclude argument regarding the value or importance of
constitutional rights [ECF No. 72]: GRANTED IN PART and
DENIED IN PART. Plaintiff may not ask the jury to assign a
numerical value to the importance of abstract constitutional rights
in the compensatory damages calculation, but Plaintiff is not
precluded from referencing the importance of the jury’s task in
determining liability on constitutional questions.
12. To exclude reference to the code of silence [ECF No. 73]:
13. To exclude evidence, argument, or testimony implying malice
regarding the absence of body-cam video at the hospital [ECF
No. 74]: GRANTED.
14. To exclude evidence or testimony regarding any alleged violation
of DPD police manual provisions [ECF No. 75]: DENIED
15. To exclude reference to opposing counsel’s former career in law
enforcement, government or personal experience with police
[ECF No. 76]: DENIED.
16. To exclude evidence or testimony regarding any judge or jurors’
opinion or comments concerning the truth or falsity of Plaintiff’s
claim [ECF No. 77]: GRANTED.
17. To exclude evidence or testimony allocating fault to Officer Eric
Bromley [ECF No. 78]: DENIED.
18. To preclude Plaintiff from seeking damages as to Defendants
Eric Bromley and Eric Carthan beyond the time of his second
arrest [ECF No. 79]: DENIED.
Finally, counsel must revise the Joint Final Pretrial Order based on the
above rulings and any other changes agreed upon by the parties. They must
also attempt greater agreement on Plaintiff’s exhibits. The revised joint final
pretrial order shall be submitted to the Court no later than Monday, July 26,
IT IS ORDERED.
s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: July 15, 2021
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